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An indident diligence, for proving of an exception, being received and admitted to probation, and, in the second term, the pursuer thereof having cited witnesses, out of the country, upon 60 days, and offering to make faith that they were necessary witnesses to him, and craving further diligence against them, for the like space, because they were still out of the country, the Lords refused to grant further diligence against them, upon 60 days, because they were out of the country before the first term when the incident was admitted, but the pursuer thereof then did not condescend nor protest for an incident against them at that time, nor summoned he them at the first term, albeit he summoned others, who were then out of the country, against whom he then protested for an incident upon 60 days, at which time he made no mention of these, who were thereafter summoned after the second term.
Act. Gibson.Alt. Baird.Clerk, Gibson.
Fol. Dic. v. 2. p. 190. Durie, p. 485.*** Auchinleck reports this case:
At the last term of the incident, it is desired that the pursuer thereof may have letters to summon witnesses, upon 60 days, because it was alleged, that he was a necessary witness; to which it was answered, that seeing he did not condescend, at the first term, upon this witness, when he protested for lawful diligence, upon 60 days, against such as were out of the country, it was no reason the same should be granted now, at the last term. The Lords would not grant the desire of the pursuer of the incident.
